<img src="//bat.bing.com/action/0?ti=5189112&amp;Ver=2" height="0" width="0" style="display:none; visibility: hidden;">

Personal Injury and Insurance Law Legal Research Blog

TORTS: Social Host's Legal Duty to Render First Aid

Posted by Lee P. Dunham on Thu, Jan 25, 2018 @ 11:01 AM

Lee Dunham, Senior Attorney, National Legal Research Group

            During the holiday season, many of us open our homes to friends and coworkers and, unfortunately, sometimes a guest is injured or becomes sick on the property. What is the scope of a host's duty to render first aid to the uncle who cuts his hand while carving the turkey, or the New Year's Eve guest who has far too much to drink?

            Courts of most states generally follow the scheme outlined in the Restatement (Second) of Torts as to duty to render aid. The general rule, of course, is that there is no duty to render aid to one who is in peril, even if it would be easy to provide assistance. See Restatement § 314 ("The fact that the actor realizes or should realize that action on his part is necessary for another's aid or protection does not of itself impose upon him a duty to take such action."). But an exception applies when a "special relationship" exists between the parties.

Read More

Topics: torts, special relationship exception, legal duty to guest, first aid

PERSONAL INJURY: Comparative Fault in Crashworthiness Cases

Posted by Alfred C. Shackelford III on Thu, Jan 25, 2018 @ 10:01 AM

Fred Shackelford, Senior Attorney, National Legal Research Group

            Can a plaintiff motorist's comparative fault be considered in crashworthiness cases based on strict liability or breach of warranty? That was the issue of first impression for the South Carolina Supreme Court in Donze v. General Motors, LLC, 420 S.C. 8, 800 S.E.2d 479 (2017). In Donze, the plaintiff passenger had been smoking synthetic marijuana earlier in the day. He sustained severe burn injuries when the truck in which he was riding burst into flames after colliding with another vehicle at a controlled intersection. The accident occurred because the truck driver failed to stop and pulled directly in front of the other vehicle.

            The plaintiff brought a crashworthiness case against the truck's manufacturer, alleging that the truck's design was defective because the gas tank was placed outside of the truck's frame. Two issues were certified to the Donze court:

  1. Does comparative negligence in causing an accident apply in a crashworthiness case when the plaintiff alleges claims of strict liability and breach of warranty and is seeking damages related only to the plaintiff's enhanced injuries?
  2. Does South Carolina's public policy bar impaired drivers from recovering damages in a crashworthiness case when the plaintiff alleges claims of strict liability and breach of warranty?
Read More

Topics: comparative fault, personal injury law, strict liability, crashworthiness cases, breach of warranty

PERSONAL INJURY: Suicide as Intervening Event

Posted by John M. Stone on Fri, Sep 22, 2017 @ 11:09 AM

John Stone, Senior Attorney, National Legal Research Group

            According to the "intervening causes doctrine," there can be no proximate cause, as is required for liability in a negligence case, where there has intervened between the act of the defendant and the injury to the plaintiff an independent act or omission of someone other than the defendant, that was not foreseeable by the defendant, was not triggered by the defendant's act, and was sufficient of itself to cause the injury. As a general rule, suicide is deemed an unforeseeable intervening cause of death that absolves the tortfeasor of negligence liability in an action for wrongful death.

            When a mother brought an action against a city and its police officer for wrongful death arising out of her teenage daughter's suicide death, after the officer's disclosure of photographs of the daughter's body following her previous suicide attempt, the claim failed because of the intervening cause doctrine.  City of Richmond Hill v. Maia, No. S16G1337, 2017 WL 2332660 (Ga. May 30, 2017).

Read More

Topics: suicide, personal injury, intervening cause doctrine, special relationship exception

CONTRACTS: Breach-of-Contract Claims in Medical Malpractice Cases Require Breach of Additional Promise

Posted by Emily Abel on Wed, Aug 23, 2017 @ 11:08 AM

Emily Abel, Research Attorney, National Legal Research Group

            On March 17, 2017, in Heneberry v. Pharoan, 232 Md. App. 468, 158 A.3d 1087 (2017), the Maryland Court of Special Appeals addressed the issue of what is required to prevail on a breach-of-contract claim in a medical malpractice action. The plaintiff, Valerie Heneberry ("Heneberry") who was suffering from acute appendicitis, received an appendectomy from Dr. Bashar Pharoan ("Dr. Pharoan"). During the surgery, Dr. Pharoan removed most of Heneberry's appendix, but left the "stump" of the appendix. Heneberry alleged that because of Dr. Pharoan's failure to remove her entire appendix, she experienced severe pain and was forced to undergo an additional surgical procedure to remove the remainder of her appendix.

            In addition to bringing claims for negligence and loss of consortium, Heneberry included in her medical malpractice complaint a count alleging that Dr. Pharoan had breached their contract. Specifically, Heneberry alleged that Dr. Pharoan had a "contractual obligation to perform an appendectomy, which is the removal of the appendix, not a portion of the appendix, and [there was] no testimony that he intended to leave a portion behind." Id. at ___, 158 A.3d at 1094.

Read More

Topics: contracts, breach of contract claim, medical malpractice

PERSONAL INJURY: Effect of Injured Party's Immigration Status

Posted by Alfred C. Shackelford III on Wed, Aug 23, 2017 @ 11:08 AM

Fred Shackelford, Senior Attorney, National Legal Research Group

     In a case of first impression, the Indiana Supreme Court has addressed two issues that affect actions arising from injuries to plaintiffs who are in the United States unlawfully. In Escamilla v. Shiel Sexton Co., Inc., 73 N.E.3d 663 (Ind. 2017), an unauthorized immigrant (a Mexican citizen) was injured while working as a masonry laborer at an Indiana job site. He sued the general contractor, which argued that his immigration status should bar him from recovering damages for decreased earning capacity. The Escamilla court addressed both that issue and the admissibility of the plaintiff's status.

            As to the first issue, the court ruled that the plaintiff could recover damages for decreased earning capacity. The court relied upon the Open Courts Clause in the state's constitution, which mandates that courts shall be open and that "every person . . . shall have remedy by due course of law." Id. at 665. The court reasoned that "[w]e cannot read the Open Courts Clause's 'every person' guarantee to exclude unauthorized immigrants." Id. at 667.

Read More

Topics: personal injury, admissibility, damages for decreased earning capacity, unauthorized immigration status, Indiana Open Courts Clause

TORTS/SOVEREIGN IMMUNITY: Foreign-Country Exception to the Federal Tort Claims Act

Posted by Steven G. Friedman on Thu, Jul 20, 2017 @ 15:07 PM

Steven Friedman, Senior Attorney, National Legal Research Group

      The Federal Tort Claims Act ("FTCA"), 28 U.S.C. §§ 2671–2680, "was designed primarily to remove the sovereign immunity of the United States from suits in tort and, with certain specific exceptions, to render the Government liable in tort as a private individual would be under like circumstances." Richards v. United States, 369 U.S. 1, 6 (1962). Absent a waiver of immunity, the district courts are deprived of subject-matter jurisdiction for tort claims against the United States. See 28 U.S.C. § 1346(b)(1).

      The FTCA's foreign country exception provides that there is no waiver of immunity for "[a]ny claim arising in a foreign country." 28 U.S.C. § 2680(k). In Sosa v. Alvarez-Machain, 542 U.S. 692 (2004), the Supreme Court held that the foreign country exception "bars all claims based on any injury suffered in a foreign country." Id. at 712. Yet the Sosa Court left unanswered the question of how to determine where an injury is "suffered" for purposes of the foreign country exception. See S.H. ex rel. Holt v. United States, 853 F.3d 1056, 1057–58 (9th Cir. 2017).  

     This question was directly addressed in a recently published decision by a unanimous panel of the Ninth Circuit. See id. at 1060. In S.H., the Holts' daughter was born prematurely while the family was stationed at a United States Air Force ("USAF") base in Spain. See id. at 1058. As a consequence of her premature birth, S.H. sustained a permanent injury to the white matter of her brain but was not diagnosed as suffering from cerebral palsy until after the family had returned to the United States. See id. The Holts filed suit against the United States, contending that officials at a USAF base in California negligently approved the family's request for command-sponsored travel to a base in Spain ill-equipped to deal with Mrs. Holt's medical needs. See id. The district court agreed that the injury occurred in the United States, because the cerebral palsy was only diagnosed in the United States, and ultimately awarded the Holts significant damages. See id. The United States appealed arguing, among other things, that the injury at issue was suffered in Spain and thus barred by the foreign country exception of the FTCA. See id.

Read More

Topics: tort law, sovereign immunity, foreign-country exception, FTCA

TORTS: Federal Tort Claims Act—Effect of State Time Limitations

Posted by Alfred C. Shackelford III on Mon, Mar 6, 2017 @ 17:03 PM

The Lawletter Vol 42 No 2

Fred Shackelford, Senior Attorney, National Legal Research Group

      Can a suit against the federal government be maintained even though it would be time-barred under state law? That was the issue in a medical malpractice action arising in Louisiana. In Bagley v. United States, No. 8:16-CV-30, 2016 WL 6082023 (D. Neb. Oct. 18, 2016), the plaintiff underwent surgery at an Air Force base in Louisiana in 1997. Over the next 15 years, he experienced pain in the area of his right groin. In 2013, an x-ray revealed that a metallic object had been left in the plaintiff's body during the 1997 surgery. Within two years after discovering the object, the plaintiff filed an action in Nebraska against the United States under the Federal Tort Claims Act ("FTCA").

     The government moved to dismiss on the ground that the action was time-barred under Louisiana law, where the cause of action arose. Under a Louisiana statute, La. Rev. Stat. Ann. § 9:5628, medical malpractice actions must be filed within one year after the negligent act or omission, or of discovery thereof, but in no event later than three years after the negligent act or omission occurred. Under the FTCA, there is a two-year limitations period, which accrues in medical malpractice actions when the claimant discovers or reasonably should have discovered the alleged malpractice.

Read More

Topics: torts, Federal Tort Claims Act, is suit time-barred under state law

PERSONAL INJURY: Hospital's Liability for Malpractice Based on Apparent Agency

Posted by Alfred C. Shackelford III on Thu, Dec 1, 2016 @ 09:12 AM

Fred Shackelford, Senior Attorney, National Legal Research Group

      The Connecticut Supreme Court has clarified the circumstances under which a hospital may be held vicariously liable for malpractice by a physician who has staff privileges at the hospital but who is not an employee thereof. In Cefaratti v. Aranow, 321 Conn. 593, 141 A.3d 752 (2016), a patient brought a medical malpractice action against a surgeon ("Dr. Aranow") and a hospital ("Middlesex"), alleging that Dr. Aranow left a surgical sponge inside her abdomen during a gastric bypass surgery and that Middlesex was vicariously liable for Dr. Aranow's negligence. Prior to undergoing surgery at the hospital, the plaintiff patient went to Middlesex to attend several informational sessions, which were conducted by the staff of the independent professional corporation that employed Dr. Aranow. The plaintiff received a pamphlet at one of the informational sessions that had been prepared by Middlesex. The pamphlet stated that "the health care team who will be caring for you has developed an education program that is full of important information." In addition, the pamphlet stated that "[t]he team will go over every aspect of your stay with us. We will discuss what you should do at home before your operation, what to bring with you, and events on the day of surgery." The plaintiff assumed that Dr. Aranow was an employee of Middlesex because he had privileges there, and she relied on this belief when she chose to undergo surgery at Middlesex. Id. at 598, 141 A.3d at 755 (footnote omitted).

Read More

Topics: Fred Shackelford, personal injury, hospital, vicarious liability, malpractice

PERSONAL INJURY: Punitive Damages Awarded Against a Decedent's Estate

Posted by Alfred C. Shackelford III on Tue, Jul 12, 2016 @ 16:07 PM

Fred Shackelford, Senior Attorney, National Legal Research Group 

      Can a court or a jury award punitive damages against a tortfeasor's estate? The Ohio Supreme Court addressed this issue of first impression in Whetstone v. Binner, 2016-Ohio-1006, 2016 WL 1061742. The case arose when a mother left her daughters with a babysitter, who was a relative. When the mother returned to pick up the children, she discovered the relative with one hand on one child and the other hand holding a pillow over the child's head. The mother struggled with the relative before escaping with her daughters. The mother and both daughters were later diagnosed with posttraumatic stress disorder, and they sued the relative for assault, false imprisonment, emotional distress, and loss of consortium. They sought both compensatory and punitive damages.

     After a default judgment was entered, the relative moved for relief from the judgment and requested postponement of an evidentiary hearing to determine damages. The trial court rescheduled the hearing but refused to grant relief from the judgment, and the relative died before the hearing took place. After the administrator of the relative's estate was substituted as the defendant, the trial court awarded compensatory damages but declined to award punitive damages. The court believed that punitive damages cannot be awarded against a tortfeasor's estate.

Read More

Topics: Fred Shackelford, personal injury, decedent's estate, punative damages award

WRONGFUL DEATH: Apportioning Wrongful Death Proceeds Between Decedent's Survival Claim and Beneficiaries' Wrongful Death Claim

Posted by Charlene J. Hicks on Tue, Feb 9, 2016 @ 11:02 AM

The Lawletter Vol 41 No 1

Charlene Hicks, Senior Attorney, National Legal Research Group

     When a catastrophic accident causes one or more people to die, multiple legal questions inevitably arise. Among these is the issue as to whether and to what extent the deceased person's medical insurance company is entitled to recoup the costs it paid for the person's medical treatment prior to death from any wrongful death settlement or verdict eventually entered in favor of the decedent's estate and/or beneficiaries.

     Although the answer to this question depends on the law of each particular state, an examination of Administrative Committee of Dillard's, Inc. Group Health, Dental & Vision Plan v. Sarrough, No. 1:14-CV-01165, 2015 WL 3466568 (N.D. Ohio June 1, 2015), appeal dismissed, No. 15-3718 (6th Cir. Aug. 12, 2015), may be illuminating. There, Hanan Saah was injured in a February 2011 car accident in Ohio. Her employer, Dillard's, paid $260,000 of her medical expenses pursuant to a federal Employee Retirement Security Act of 1974 ("ERISA") health plan. Saah subsequently died in July 2011. Her estate was eventually awarded $300,000 in various wrongful death settlements. Dillard's then claimed a right to the settlement proceeds in order to recoup its $260,000 in medical costs.

     The district court determined that, as an initial matter, it was important to distinguish, and to allocate the amount of funds attributable to, the two different components of the settlement: Saah's survival claim versus the wrongful death claim. Dillard's, as the ERISA-approved health benefit plan, had a right to obtain reimbursement of medical expenses paid from net settlement proceeds allocable to the survival portion of the settlement. Under Ohio law, the survival action belongs to the decedent's estate and, therefore, was subject to subrogation.

Read More

Topics: wrongful death, Charlene J. Hicks, subrogation to medical benefit plan, apportionment, survival claim

New Call-to-action
Free Hour of Legal Research  for New Clients
Seven ways outsourcing your legal research can empower your practice